A New Challenge to Citizens United

"... the court didn’t pause to think about corporate crime. ..."

Recently, Rep. Keith Ellison, D-Minn., announced bold legislation that will limit corporate felons’ ability to influence our elections. It’s an important step toward undoing the damage of the Supreme Court’s 5-year-old Citizens United decision and restoring control over our democracy.

Until 2010, this wasn’t an issue. Corporations were flat-out prohibited from spending money to influence federal elections -- and many states had similar laws. The reasons are obvious. Corporations are an important part of our economy, and the people who work in them have every right to participate in our political processes. But corporations themselves aren’t citizens. They can’t vote, and aren’t part of our political community. And they have immense financial resources that don’t have any connection to public support for their political goals.

The Supreme Court saw it differently. In Citizens United v. Federal Election Commission, the court said that the law keeping corporations out of our politics violated freedom of speech under the First Amendment.

But the court didn’t pause to think about corporate crime. As we’ve seen since the financial crisis, corporate crime can cause more harm than street crime. Here, however, the fortunes of street criminals and corporate criminals diverge. People convicted of felonies go to prison for years. Corporations charged with felonies usually negotiate a “deferred prosecution agreement,” pay a fine (which comes out of shareholders’ money), and then get right back to business. And increasingly, that business includes working the system to change the rules in their favor.

We don’t have complete information on how much cash corporate criminals are injecting into our political system, because of weak disclosure laws that allow corporations to spend money directly, or give it to shadowy “dark money” groups, out of the public eye. But we do know some things.

Take the oil giant Chevron. Chevron has a long rap sheet, including environmental and human rights violations. In 2007, it agreed to pay $27 million to settle federal criminal and civil violations stemming from its illegal purchases of Iraqi oil in violation of United Nations sanctions against Saddam Hussein’s regime. But from 2007-2012, Chevron spent almost $11 million on political contributions. And last year, Chevron spent an astonishing $3 million to try to tilt an election, not for Congress, or even a state legislature, but a city council.

Or consider Wall Street, whose titans strut the halls of Congress as if they own it. And maybe they do; political spending by Wall Street firms, which stepped up soon after the financial crisis of 2008, gives them extraordinary influence with both political parties. Last year, JPMorgan Chase agreed to settle two criminal charges for violating money laundering rules. It’s now being investigated for possible criminal activity involving foreign exchanges. Yet it continues to spend millions of dollars to influence federal and state elections.

We need to put a stop to this, and that’s why we applaud Ellison’s bill. It provides that corporations with felony records must stay out of federal, state and local elections for six full years.

Some will say that this runs afoul of Citizens United. But Citizens United is based on broad assumptions and generalities, and those assumptions simply don’t apply to criminal corporations. Political spending by these criminal corporations presents a special risk of corruption. A corporate culture that disobeys federal criminal law won’t hesitate to buy a politician.

This bill won’t solve everything that’s broken with our campaign finance system. But getting corporate criminals out of our elections is a good start. Three cheers for Rep. Ellison and his brave new bill.

Ron Fein, legal director of Free Speech For People, a national nonpartisan, nonprofit organization that engages in legal advocacy to confront the misuse of the Constitution, wrote this for CQ-Roll Call.